FAMILY LAW AND CHILD WELFARE - Appeals - Procedure - Extension of time - Appeal from Children's Court's orders relating to parental responsibility of young person - No adequate explanation for delay - Safety, welfare and wellbeing of young person paramount - Not in interests of young person to grant extension of time - Proceedings dismissed.

CHILD WELFARE - orders made in the parens patriae jurisdiction for recovery of child to be placed with father and for father to have authority to detain her - proceedings pending in Children's Court - Minister unable to provide secure accommodation - application by Minister to discharge orders and by father to vary orders.

Court of Appeal Decisions

ADMINISTRATIVE LAW - judicial review - appeal from Children's Court to the District Court - no appeal against judgment on statutory appeal to the District Court - whether error of law on the face of the record or jurisdictional error established.

FAMILY LAW AND CHILD WELFARE - child welfare under state legislation - contact orders - whether the primary judge erred in making non-binding 'notations' providing for contact rather than contact orders - whether the primary judge provided sufficient reasons for his decision - Children and Young Persons (Care and Protection) Act 1998 (NSW), s 86

Court of Criminal Appeal Decisions

CRIMINAL LAW - conviction appeal - take without consent and indecent assault - evidence - competence of child to take oath - unsworn evidence by child - fundamental defect in giving unsworn evidence - appeal allowed - whether verdict unreasonable and not open on the evidence - identification by child witnesses -discrepancies in their descriptions - both child witnesses identify very distinctive feature of the assailant - whether open to jury to be satisfied beyond reasonable doubt as to identification of assailant - this ground of appeal dismissed - whether submissions by Crown gave rise to a miscarriage of justice - whether the trial judge gave appropriate directions to the jury - no miscarriage of justice - the ground of appeal dismissed - matter remitted to District Court for new trial.

Federal Circuit Court Decisions

FAMILY LAW - parenting - competing applications for live with order for six Aboriginal children by Aboriginal maternal grandmother and Department of Family and Community Services - children removed from the maternal grandmother during the course of proceedings without notice - maternal grandmother's long history with the Department - poor communication between the maternal grandmother and the Department - maternal grandmother's inadequate housing - superficial proposal by the Department for the children to connect with their culture - order made for the maternal grandmother to have sole parental responsibility for the children and for the children to be returned to the maternal grandmother.

CLN 2 - June 2015

Supreme Court Decisions

FAMILY LAW AND CHILD WELFARE - child welfare under State legislation - adoption - whether the making of an adoption order is clearly preferable to any other order that could be made with respect to the care of the child - where no realistic prospect of restoration of child to care of birth parents - where preserving the possibility of restoration would thus contravene the spirit of adoption principle (e1) - where proposed adoptive parents in a better position to facilitate contact with birth parents than the Department - where adoption would serve child's identity needs better than any potential alternative as it would confirm the child's identity with his psychological family while preserving the opportunity for him to know his birth parents and to understand why he does not live with them - held, that the making of an adoption order is clearly preferable to any other order that could be made with respect to the care of the child.

FAMILY LAW AND CHILD WELFARE - child welfare under State legislation - adoption - whether consent of birth parents ought to be dispensed with - as the making of an adoption order would promote the child's welfare and be in his best interests, it is necessarily also in the best interests of the child to make a consent dispense order so as to allow the adoption order to be made.

ADOPTIONS - where prospective parents seek orders joining them to the proceedings as parties - interests of prospective parents cannot be disregarded - where it is proper that the prospective parents have an opportunity to put their position before the court.

FAMILY LAW AND CHILD WELFARE - child welfare under State legislation - adoption - whether adoption order clearly preferable to any other order that could be made with respect to care of child - where no realistic prospect of restoration - where preserving possibility of restoration would contravene spirit of adoption principle (e1) - where due to history of prior placement instability child has accentuated needs of security and permanency - where adoption would serve child's identity needs better than any potential alternative as it would confirm child's identity with psychological family while preserving opportunity to know birth parents and to understand why does not live with them - where adoption plans make inadequate provision for birth parent contact - held, that making of an adoption order, in conjunction with orders securing birth parent contact, is clearly preferable to any other order that could be made with respect to care of child.

FAMILY LAW AND CHILD WELFARE - child welfare under State legislation - adoption - whether consent of birth parents should be dispensed with - as making adoption order would promote child's welfare, necessarily also in child's best interests to make consent dispense order so as to allow the adoption order to be made.

FAMILY LAW AND CHILD WELFARE – appeal from decision of Presidential Children’s Court – application by great grandparents for joinder in proceedings – distinction between Children and Young Persons (Care and Protection) Act 1998, ss 87 and 98 – whether applicants had a “genuine concern for the safety, welfare and well-being” of the children – whether Court should exercise its discretion under Children and Young Persons (Care and Protection) Act 1998, s 87(3) to allow applicants to appear in proceedings and cross-examine witnesses – order to join applicants to proceedings made on terms.

JUDICIAL REVIEW - whether the Children’s Court had jurisdiction to make orders under the Children and Young Persons (Care and Protection) Act 1998, sections 4(a) and 4(c) CERTIORARI – discretionary – quashed order of Children’s Court of New South Wales – jurisdictional error – usurping of jurisdiction.

Court of Appeal Decisions

ADMINISTRATIVE LAW – judicial review – appeal from Children’s Court to District Court – unsuccessful application for leave to apply to rescind care orders – application to Court of Appeal for relief pursuant to s 69, Supreme Court Act 1970 (NSW) – whether error of law on the face of the record or jurisdictional error established – whether District Court correctly applied provisions of the Children and Young Persons (Care and Protection) Act 1998, s 90.

ADMINISTRATIVE LAW – child welfare – care and protection of children – care and protection orders – international treaty obligations – relevance to exercise of discretion – United Nations Convention on the Rights of the Child.

ADMINISTRATIVE LAW – child welfare – care and protection of children – care and protection orders – judicial review – appeal from Children’s Court to District Court – application to Court of Appeal for relief pursuant to s 69, Supreme Court Act 1970 (NSW) – whether error of law on the face of the record or jurisdictional error established – whether District Court correctly construed and applied provisions of the Children and Young Persons (Care and Protection) Act 1998 – s 106A .

ADMINISTRATIVE LAW – child welfare – care and protection of children – care and protection orders – international treaty obligations – relevance to exercise of discretion – United Nations Convention on the Rights of the Child.

CHILD WELFARE – care and protection of children – care and protection orders – challenge to Children’s Court order placing child under parental responsibility of Minister until aged 18 years of age.

Court of Criminal Appeal Decisions

CRIMINAL LAW – appeal against sentence – whether there was failure to give appropriate weight to age and background when assessing moral culpability – whether sentence imposed was manifestly excessive – leave to appeal granted, but the appeal be dismissed.

CRIMINAL LAW – sentencing – sentencing adult for sexual offences committed as juvenile – whether sufficient allowance made for applicant’s youth at time of offending – whether sentence accorded with sentencing principles applied at time of offending – no need for further rehabilitation.

CRIMINAL LAW – appeal – appeal against sentence –take and detain child – reckless wounding – where offender under 18 at time of offences – where offender suffers from mild intellectual disability – offender dealt with according to law - proper regard had to offender’s mental condition – sentence not manifestly excessive – no error in reference to standard non-parole period.